Employer Background Checks and Your Rights (2023)

If you’re applying for a job or a promotion, an employer might run a background check. Federal law and some state laws give you rights when this happens. Employers must get your written permission before running a background check from a background reporting company. You have the right to say no, but if you do, you may not get the job.

  • What Employers Can Ask About Your Background
  • Background Reporting Companies
  • If You’re Turned Down for a Job or Promotion
  • Denial Due to Discrimination
  • What You Can Do Before You Apply
  • Protect Your Privacy
  • Report It to the FTC

What Employers Can Ask About Your Background

When employers ask you about your background, they must ask you the same questions they ask every other applicant — regardless of your race, national origin, color, sex (including pregnancy, sexual orientation, gender identity, and transgender status), religion, disability, genetic information (including family medical history), or age (if you’re 40 or older).

Employers aren’t allowed to ask for extra background information because you are, say, of a certain race, or because you have filed a complaint against an employer alleging employment discrimination before.

Employers also can’t retaliate against you — whether you’re a job applicant or employee — for asserting your right to be free from employment discrimination, including harassment. Asserting these rights is called “protected activity,” and it includes opposing alleged discrimination, or participating in proceedings under federal laws enforced by the Equal Employment Opportunity Commission (EEOC).

There are also rules about the types of questions an employer can ask you:

  • your employment history
  • education
  • other public records, financial or credit history, and your public social media activities

Employers cannot ask you about and check your background for

  • medical information if they haven’t offered you the job. Employers may ask you for medical information in limited circumstances either after they’ve offered you the job, or after your employment begins.
  • genetic information, including your family medical history (except in limited circumstances)

Some employers might say not to apply if you have a criminal record. That could be employment discrimination. If that happens to you, contact the EEOC. Find more information on arrest and conviction records in employment decisions at the EEOC website.

Laws in your city or state might impact whether or when employers can ask you about and run a background check for your criminal history or credit history. Here are some things to consider:

Background Reporting Companies

When employers hire a background reporting company in the business of compiling background information and history, certain rules apply:

  • The employer must tell you they could use the information to decide about hiring, promoting, or firing you. They must give you this information in writing and in a standalone document. They must also get your written permission before asking the company to run a background check.
  • An employer must take certain steps before they decide not to hire, keep, or promote you because of something in the report. They must give you a copy of the report and a “Summary of Rights” that tells you how to contact the background reporting company.

If You’re Turned Down for a Job or Promotion

In some instances, it’s legal for an employer to deny you a job or a promotion based on information in your background report. Sometimes it’s a mistake. In other instances, the employer’s decision to deny you a job or a promotion might be based on discrimination. If you don’t get a job or a promotion because of information in your background report, the employer must tell you the following verbally, in writing, or electronically

  • the name, address, and phone number of the background reporting company
  • that the background reporting company didn’t make the decision about not hiring or promoting you and can’t give specific reasons for it
  • that you have the right to dispute information on your report that is inaccurate or incomplete with the background reporting company. You can do this by contacting the background reporting company and following the company’s instructions for disputing the information
  • that you have the right to get an additional free report from the background reporting company. You must ask for it within 60 days of the employer’s decision.

When you get your background report, review it carefully. If you think there are mistakes, contact the background reporting company to explain the mistakes and ask that they fix them, and include any supporting documentation you have with your request. If the background reporting company informs you that it has revised your report, review the report to make sure the mistakes are gone. Ask the background reporting company to send a copy of the corrected report to the employer and tell the employer about the mistake.

Denial Due to Discrimination

In some instances, an employer’s use of an individual’s background report information can lead to illegal discrimination. For example, employers shouldn’t use a background report policy or practice that

  • excludes people with certain criminal records if it significantly disadvantages one group of individuals compared to another group, based on race, national origin, or other protected characteristics covered by state or federal laws that prohibit employment discrimination; and
  • does not accurately predict who will be a responsible, reliable, or safe employee.

In legal terms, an employer cannot have a policy or practice that has a disparate impact on a particular group, unless there’s a job-related reason and it’s consistent with business necessity.

If you think an employer discriminated against you during the background check process, you may contact the EEOC by visiting its website at eeoc.gov or by calling 1-800-669-4000, or 1-800-669-6820 (TTY). The EEOC enforces federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, sexual orientation, gender identity, and transgender status), national origin, age (if you’re 40 or older), disability, or genetic information, or in retaliation for a person’s involvement in prior activities protected by federal employment discrimination laws. The EEOC investigates, conciliates, and mediates charges of employment discrimination and, in some instances, files lawsuits in the public interest.

What You Can Do Before You Apply

  • Check your credit report. That way, you can fix any mistakes before an employer sees it. To get your free credit report, go to AnnualCreditReport.com, or call 1-877-322-8228.
  • See if the local police and FBI list any criminal records in your name. Visit the State Department’s Bureau of Consular Affairs site for detailed information on how to get this information. The information you find here might be different than what a background reporting company might have. But mistakes in local and FBI records can cause you problems. It’s worth checking if you’re concerned. And if you spot mistakes, you can be ready to address them or explain them to a potential employer.
  • Know your rights as a job applicant or employee. The EEOC enforces federal laws designed to protect you against employment discrimination because of different protected categories. While employers generally can ask about your criminal history, employers can’t use your criminal history to discriminate against you based on a protected category, like your race. If you believe an employer has discriminated against you, contact the EEOC online at eeoc.gov, by calling 1-800-669-4000, or by locating an EEOC field office near you.

Protect Your Privacy

  • Don’t put your Social Security number or banking information on an application or resume. If a company asks you for this information before you even interview, it’s probably a job scam. Employers may ask for your Social Security number during the interview process to run a background check. Once you’re hired, they may ask for your banking information so you can get direct deposit for your paychecks.
  • Be mindful of what you share on social media and other places online. If you don’t want potential or current employers to see something you say or do, think about not posting it, or limiting who you share it with.

Report It to the FTC

If an employer got your background report without your permission, or rejected you without sending you the required notices, report it to the FTC at ReportFraud.ftc.gov. Also tell the FTC if you learn that a company shared your information with others without your permission.

Keep in mind that the information in this article is not legal advice. For that, you’ll need to consult an attorney. For the most up to date EEO-related developments, visit eeoc.gov.


Employer Background Checks and Your Rights? ›

Even though you can safely omit some information about your criminal past, you must offer an honest answer when directly asked about it by the interviewer. Don't lie about your past, even if it was a minor offense or a single occurrence. Many employers conduct background checks, which will reveal the incident.

How do you answer background check questions? ›

Even though you can safely omit some information about your criminal past, you must offer an honest answer when directly asked about it by the interviewer. Don't lie about your past, even if it was a minor offense or a single occurrence. Many employers conduct background checks, which will reveal the incident.

What does it mean when an employer asks if you can pass a background check? ›

Undergoing a background check doesn't always guarantee that an employer has decided to hire you for a job. However, a background check is usually an indicator that an employer is seriously considering you for an available role.

Does pre-adverse action mean I won't get hired? ›

Pre-Adverse Action

The pre-adverse action letter can be delivered via electronic or hard copy form. Its purpose is to inform the applicant that you will not hire them for the position based on information uncovered in the background check.

Can you still be hired after an adverse action letter? ›

All that to say, a candidate can still be hired after receiving a pre-adverse notice. If their information is misleading and they can dispute what was used against them, then they still have a chance.

How do you respond to a failed background check? ›

You must give the candidate an opportunity to dispute the results of the background check if there are any inaccuracies or provide additional context. Fair hiring laws in some jurisdictions may include a specific amount of time for this step, typically between five to 10 business days.

How to tell a candidate they didn t pass the background check? ›

Whatever the reason, here are five actions to take if your job candidate doesn't pass a background check.
  1. #1: Send a pre-adverse action letter. ...
  2. #2: Give them a chance to explain. ...
  3. #3: Review the entire picture. ...
  4. #4: Make a final decision. ...
  5. #5: Send them a final notice adverse action letter.
Sep 23, 2016

What background check do most employers use? ›

The most popular form of background check is Level 3 background check. Criminal records, schooling, past employment, and reference checks are all part of this process. If desired, pre-employment drug test results can be included in Level 3 background check reports.

Does decisional mean failed background check? ›

What does “decisional” mean on a background check report? “Decisional” means that the employer has configured the results in the background check to require additional review by the employer or the property management company.

Does onboarding mean I passed the background check? ›

Yes. Onboarding means they are bringing you in as an employee. That means the background check passed.

What does it mean when a company takes adverse action against you? ›

In the hiring process, adverse action means a company is considering not hiring the applicant or that they may withdraw an offer. Usually, this is based on an adverse report on a consumer report or background check.

What does complete adverse mean on a background check? ›

Within the context of background checks, adverse action means that an employer has negatively impacted an applicant's job prospect due to information gained from the report.

What is the difference between adverse and pre-adverse? ›

The only real difference is that the Pre-Adverse Action Notice tells the applicant that you plan to or may reject him/her (or take other adverse action) based on information in the report. However, the Adverse Action Notice advises that you have made a final decision to do so.

How do I prepare for a background check interview? ›

How to prepare for a background check
  1. Maintain accurate records of your educational background and previous employment. ...
  2. Obtain copies of your records. ...
  3. Be honest during the job application process. ...
  4. Tell your professional references that you've listed them as references. ...
  5. Know how to discuss employment or education gaps.
Mar 18, 2023

What is an example of a background interview question? ›

Typical background questions include inquiries about where you went to school (undergraduate and/or business school), what you majored in, and why/where you studied abroad if you've done that. These questions are not too difficult to answer as long as you're thoughtful and have a decent rationale for what you say.


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